For over 50 years the Clean Water Act (CWA) has stood as one of the most effective laws ever enacted in the United States, and a model for clean water laws across the globe. By establishing citizens’ right to enforce it, the CWA served as a powerful tool for protecting waterways across the nation. The Supreme Court’s decision in the Sackett v. EPA case undermines that goal by severely narrowing the waters that are protected by the CWA, ultimately putting polluters above people.
WOTUS Woes
The CWA was passed in 1972 with an objective to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. The CWA seeks to achieve that objective through several programs which include requiring permits for discharge of pollution into waterways, providing protections for wetlands, and directing states to set water quality standards, as well as the creation of restoration plans to meet those state standards.
However, for as long as the CWA has been law, there has been disagreement about which waterways do, and which do not, receive protections offered by the Act. The CWA applies to “navigable waters” which is defined as the “Waters of the United States” (WOTUS). In other words, the protections offered by the CWA only apply to “Waters of the United States.”
For decades, regulated industries argued for a narrow definition of WOTUS in order to limit the scope of the CWA, while environmental groups argued for a broad definition of WOTUS in order to expand the protections offered by the CWA. In an attempt to clearly define WOTUS after decades of confusion and litigation, the Obama administration adopted the “Clean Water Rule” in 2015, but that rule was challenged in court and repealed in 2019. In 2020, the Trump administration adopted a considerably narrower definition of WOTUS, the Navigable Waters Protection Rule, but that rule was similarly challenged in court and repealed in 2021. In an attempt to create an enduring WOTUS rule, the Biden administration adopted the "Revised Definition of 'Waters of the United States'" rule early this year, which is generally considered more protective than the Navigable Waters Protection Rule, but less protective than the 2015 Clean Water Rule. Soon after its implementation, this rule was blocked in 24 states (including Florida) by a federal district court, prolonging the confusion about the scope of the CWA.
The differences between the rules are often focused on which wetlands are covered by the CWA and whether ephemeral waterways, rain-dependent streams that flow only after precipitation, are protected by the Act.
Wetlands 101
Florida contains more wetland area than any other state in the continental United States, but it is estimated that Florida has lost 9.3 million acres of its wetlands, or approximately half of its historical coverage.
Despite their prevalence in the Florida landscape, wetlands are an under-appreciated ecosystem. Wetlands provide many ecosystem services including water quality filtration, aquifer recharge, habitat, and flood water retention. The health of wetlands also impacts larger waterbodies and ecosystems to which they are hydrologically connected, even if there is no continuous surface connection.
When wetlands are included within the definition of WOTUS, and protected by the CWA, developers are required to obtain a permit before altering wetland form and function, and are subject to regulations that protect wetlands. If a wetland is not covered by the definition of WOTUS, then it will not be protected by the CWA, and can be legally damaged or destroyed regardless of the broader water quality impacts.
SCOTUS on WOTUS
Today’s ruling by the Supreme Court of the United States (SCOTUS) in the Sackett v. EPA case has embraced the demands of big polluters, putting our communities, public health, and local ecosystems in danger. Idaho landowners the Sacketts filed this lawsuit, backed by polluting industries, in an attempt to limit the reach of the CWA. In 2007 the Sacketts purchased property near Priest Lake, one of the largest lakes in Idaho. The Environmental Protection Agency (EPA) told them that they were required to obtain a wetland permit before developing it. Instead of obtaining the permit, the Sacketts brought a lawsuit claiming that the EPA does not have the jurisdiction to regulate the wetland on their property, kicking off a legal battle that has spanned well over a decade. While this might seem like an argument over a single-piece of land, this decision will have enormous impacts on waterways across the country as this lawsuit was designed by industry polluters specifically to undermine CWA protections. In today’s decision, the Court held that the CWA extends to only those wetlands that are “as a practical matter, indistinguishable from Waters of the United States”, resulting in the loss of CWA protections for thousands of wetland acres across the state.
Locals Leading
Due to the immense confusion about wetland protections at the state and federal level, many local governments have stepped up and adopted local regulations to protect their wetlands. Some local governments are pursuing ‘no net loss’ in wetlands by requiring wetlands destroyed within their boundaries to be replaced within their boundaries. Other local governments are requiring large vegetated buffers around wetland areas. By adopting these protections, local governments are working to ensure that wetlands, and the valuable ecosystem services they provide, remain in their communities. However, new laws backed by industry polluters threaten to limit the power of local governments to protect their wetlands and other natural resources.
What’s Next for WOTUS?
Congress and state officials across the country need to act fast to protect waterbodies that our nation relies on for drinking, fishing, and stimulating local economies. Waterkeepers across the country are working on alternate strategies to ensure that our wetlands and waterways are protected.